Reid v. Southern Ry. Co

• Decision Date: 31 January 1936
• Docket Number: No. 25131.,25131.
• Citation: 183 S.E. 849,52 Ga.App. 508
• Parties: REID . v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

52 Ga.App. 508

183 S.E. 849

REID .

v.SOUTHERN RY. CO. et al.

No. 25131.

Court of Appeals of Georgia,

Division No. 2.

Jan. 31, 1936.

Syllabus by Editorial Staff.

Error from Superior Court, Hall County; B. P. Gaillard, Jr., Judge.

Action by John Reid against the Southern Railway Company and others. To review a judgment dismissing the action, plaintiff brings error.

Affirmed.

Ben C. Williford, of Atlanta, and Jos. G. Collins, of Gainesville, for plaintiff in error.

R. W. Smith, Jr., Wheeler & Kenyon, and Boyd Sloan, all of Gainesville, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

The exception is to a judgment dismissing the plaintiff's action for damages alleged to have resulted from the negligence of two defendants.

1. It appears from the allegations of the petition that the accident resulting in the plaintiff's injury occurred on a public highway at a place where the railroad tracks of the defendant company ran parallel to the highway at a distance of about 20 feet eastward therefrom, and at this point a locomotive of that company was standing and emitting a large volume of dark smoke, which drifted across the highway opposite the locomotive, completely obscuring the highway at this place; that the automobile truck of the other defendant, which was traveling ahead of the plaintiff in the same direction along the highway, had stopped within the cloud of smoke on the extreme right side of the road, and was thereby enveloped in the smoke and rendered invisible to the plaintiff; that the defendants could have seen the plaintiff approaching in his automobile for about 200 yards up the road; that the defendants gave no warning of the condition of the highway at this point (that is, that a truck was parked within such cloud of smoke); and that the plaintiff, while he could not see the parked truck in time to avoid colliding with it on account of the smoke, and could not tell that the automobile was so parked on the highway ahead of him within the cloud of smoke, yet he could have seen, for a distance of about 200 yards before he reached this point, that the smoke was drifting across the highway and obscuring it, rendering it impossible for him to know what was within the cloud of smoke ahead of him. Under these facts the petition does not show any right in the plaintiff to recover of either of the defend-ants, it not appearing that he was laboring under any disability which prevented his seeing the smoke and appreciating its danger, or that he acted under any emergency. See Code 1933, §§ 94-703, 105-603; Brinson v. Davis, 32 Ga.App. 37, 122 S.E. 643; Tidwell v. A., B. & C. R. R., 42 Ga.App. 744, 157 S.E. 535; Carroll v. Georgia Power Co., 47 Ga.App. 518, 171 S.E. 208; Anderson v. Collins, etc., R. Co., 47 Ga.App. 722, 171 S.E. 384; Lane v. Gay, 41 Ga.App. 291, 153 S.E. 72; Morgan v. Central R. R., 77 Ga. 788; Central of Ga. R. Co. v. Haden, 22 Ga.App. 589, 96 S.E. 502; Central of Ga. Ry. Co. v. Black, 114 Ga. 389, 40 S.E. 247; Coleman v. Wrightsville & T. R. Co., 114 Ga. 386, 40 S.E. 247; McCrory v. Chicago, M. & St. P. R. Co. (C.C.) 31 F. 531; Ewing v. Chapman, 91 W.Va. 641, 114 S.E. 158.

• [2] (a) There being no allegation to the contrary, it must be assumed that the plaintiff was a person of ordinary intelligence, and that he was laboring under no physical defect or disability that rendered him incapable of knowing or appreciating the danger of the situation. Moore v. S. A. L. R. Co., 30 Ga.App. 466, 118 S.E. 471; Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589, 116 S.E. 225; Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812, 127 S. E. 274.

(b) The railroad company had a right to stop its engine and to allow it to emit smoke, where this was not done in an...